Legal Interest Determination And Judicial Application Of The Crime Of Illegally Absorbing Public Deposits

China’s economic state continues to improve,and the development of Internet finance,inclusive finance and blockchain finance has facilitated the public’s participation in market investment and effectively alleviated the financing difficulties of small and medium-sized enterprises.However,due to the lack of a regulatory system and the decoupling of the financial system from the legal system,many fundraising activities have been labeled as violations of the criminal law,affecting the function of private financing.The root cause of the problem lies in the frequent promulgation of administrative norms and judicial interpretations,which has led to ambiguity in the benefits of the law protecting this crime,and it is difficult to provide stable expectations for lending behavior and enterprise financing behavior among the public.Through the statistical analysis of the judgments judged as the crime of illegally absorbing public deposits,an attempt was made to clarify the legal interests of the crime,and to optimize the judicial determination of illegally absorbing public deposits.Analyzing the judgment texts of the crime of illegally absorbing public deposits in Guangdong Province and Jiangxi Province in 2019 and 2020,the judicial application has the following deficiencies: the crime is not specific;the identification standard of "public" is vague;consideration;the definition of the extension of "deposit" is not clear;the judgment expressions of various courts are not consistent.What is reflected behind this is that in judicial practice,the legal interests of the crime of illegally absorbing public deposits are relatively broad.Judges generally believe that as long as the "four characteristics" of the crime of illegally absorbing public deposits are met,it constitutes a crime,and the legal interests of the violation are not explained.,which led to the determination of the "four natures" throughout the entire trial logic,failing to clarify the harmfulness of the behavior from the source.The legal interest of the protection of the crime of illegally absorbing deposits from the public is the legal interest of trust,that is,the trust in the rules and the systematic trust in the financial system to ensure the conclusion of transactions.Ensuring the fair allocation of market resources in the financial market has become another important value goal in the construction of China’s financial legal system in addition to financial security.Compared with natural crimes,economic and financial crimes are relatively weak in ethical relevance,and a certain amount of space should be reserved for crime.For this crime,it should be allowed to prove the crime in the form of an abstract dangerous offender for fund-raising that does not infringe on the legal interests of trust.Typological thinking is the basic way to correctly apply this crime,and distinguishing between fraudulent financing,capital operation financing and production and operation financing is conducive to clarifying the boundary between crime and non-crime,and between this crime and other crimes.In the determination of illegality,the determination of offline fundraising is based on high-level laws and regulations such as the Commercial Banking Law,and the reference is based on the national regulations,measures and detailed rules on financial management;Online fundraising is based on the Interim Measures and is determined by means of a "negative list".If the fundraiser is used for normal production and operation and discloses relevant information in a timely manner,even if the investment fails,the fundraiser will not constitute the crime of illegally absorbing deposits from the public.The determination of openness should be limited to whether the fundraising actor has publicly publicized it for specific targets,and the determination of sociality should negate the method of mechanically using the number of people to create the "public",determine the comprehensive situation of fundraising participants,and exclude the protection of high-risk profitseeking investors.The determination of luring needs to be based on the public’s trust in financial rules,and the interest rate should be limited to four times the quoted interest rate of the one-year loan market,beyond which the market interest rate transmission mechanism will be dangerous.Deposits should be limited to funds used for usury or capital operations,excluding legal financing and funds used for production and business activities.The criminal law should regulate fund-raising that undermines trust in legal interests to ensure the normal operation of the financial system and prevent systemic financial risks.